BP Refinery v Tracey

BP Refinery v Tracey
Court	Full Court of the Federal Court
Full case name	BP Refinery (Kwinana) Pty Ltd v Tracey
Citation(s)	[2020] FCAFC 89
Case history
Prior action(s)	Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113; Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820;
Appealed from	Full Bench of the Fair Work Commission
Appealed to	Full Court of the Federal Court
Subsequent action(s)	Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206
Court membership
Judge(s) sitting	Besanko, Perram, and Jagot JJ

BP Refinery v Tracey [2020] FCAFC 89 was a decision by the Full Federal Court of Australia ruling that the rejection of an application for unfair dismissal had been decided incorrectly by the Fair Work Commission (FWC). BP employee Scott Tracey had been terminated following his involvement in the production and circulation of a parodic video. A scene from the 2004 film Downfall was at the time widely used on the internet to parody various events. Tracey distributed a video using this footage to depict BP management, mocking their behaviour during negotiations on pay and conditions for employees at the Kwinana Oil Refinery.

Following his termination, Tracey applied for unfair dismissal seeking reinstatement and compensation for lost salary. His application was dismissed after the FWC held the video was sufficiently offensive to constitute a valid reason for dismissal. Tracey appealed to the Full Bench of the FWC, which overturned the initial decision. BP then sought an order from the Full Federal Court to quash the fresh decision. The Full Federal Court rejected arguments made by BP, concluding the Full Bench of the FWC correctly applied its jurisdiction and that the video was not offensive. Tracey was eventually reinstated to his position and received $200,000 in compensation.